Quickpoints
Living Wills
4th March 2011
A. The term “Living Will” is a general term used to cover a variety of documents. It is not a technical term but is generally taken to describe a document which sets out your wishes regarding your future medical care or treatment which is to be referred to at a time when you are incapable of expressing your wishes.B. The term “Living Will” has been taken to cover –
1. Advance decisions
An advance decision is a decision to refuse treatment taken at a time when you are mentally competent to take effect at a time in the future when you are not mentally competent. Such wishes can be binding if they are found to be valid and applicable under the Mental Capacity Act 2005 (see C below).
2. A general statement of your wishes regarding your future care or treatment. A general statement by its nature is not binding but should be taken into account by your doctors when deciding whether a particular treatment is in your best interests.
3. An advance directive – a request or a demand for a particular treatment. An Advance directive is not binding. A patient cannot insist that a particular treatment is carried out.
4. Health care proxy. The appointment of an individual to make health care decisions on your behalf. It is now possible to appoint somebody to make decisions regarding your medical treatment under a Lasting Power of Attorney.
C. Advance decisions
It is a basic principle of English law that a mentally competent person can refuse medical treatment even if this is sure to lead to their death. Medical Professionals have a duty to respect a competent patient’s autonomy to make decisions in relation to their treatment. The validity of an advance decision is therefore an extension of this principle. Generally there is no prescribed form for an advance decision. It can be oral or in writing however, it must be in writing if it relates to the refusal of life sustaining treatment and has to state that you refuse life sustaining treatment even if your life is at risk as a result. The statement must be signed, dated and witnessed.
The Mental Capacity Act 2005 mirrored the existing law in this area and brought in safeguards. An advance decision is binding if –
1. It is valid and
2. It is applicable.
1. Validity
An advance decision is not valid if –
(i) Patient was not mentally competent when it was made or was coerced into making it.
(ii) Authority has subsequently been granted to someone under a Lasting Power of Attorney (see D below) which confers authority on that person to give or refuse consent to the treatment to which that advance decision relates.
(iii) It has been withdrawn, overridden or the person who has made it has subsequently done something inconsistent with that decision.
Example (taken from Code of Practice to the Mental Capacity Act 2005)
A young man, Angus, sees a friend die after prolonged hospital treatment. Angus makes a signed and witnessed advance decision to refuse treatment to keep him alive if he is ever injured in this way. The advance decision includes a statement that this will apply even if his life is at risk. A few years later, Angus is seriously injured in a road traffic accident. He is paralysed from the neck down and cannot breathe without the help of a machine. At first he stays conscious and gives permission to be treated. He takes part in a rehabilitation programme. Some months later he loses consciousness. At this point somebody finds his written advance decision, even though Angus has not mentioned it during his treatment. His actions before his lack of capacity obviously go against the advance decision. Anyone assessing the advance decision needs to consider very carefully the doubt this has created about the validity of the advance decision, and whether the advance decision is valid and applicable as a result.
2. Applicability
(i) An advance decision is not applicable to a particular treatment if you have mental capacity to give or refuse consent at the time. It only comes into play if you lack capacity.
(ii) It is not applicable if the treatment specified in the decision is not the particular treatment in question.
(iii) It is not applicable if any circumstances specified in the advance decision are absent.
(iv) it is not applicable if there are reasonable grounds for believing that circumstances exist which you did not anticipate at the time and which would have affected your decision had you anticipated them. This is generally taken to refer to advances in medical science.
Example (taken from Code of Practice to the Mental Capacity Act 2005)
Mr Moss is HIV positive. Several years ago he began to have AIDS-related symptoms. He has accepted general treatment, but made an advance decision to refuse specific retro-viral treatments, saying he didn’t want to be a ‘guinea pig’ for the medical profession. Five years later, he is admitted to hospital seriously ill and keeps falling unconscious. The doctors treating Mr Moss examine his advance decision. They are aware that there have been major developments in retro-viral treatment recently. They discuss this with Mr Moss’s partner and both agree that there are reasonable grounds to believe that Mr Moss may have changed his advance decision if he had known about newer treatment options. So the doctors decide the advance decision does not apply to the new retro-virals and give him treatment. If Mr Moss regains his capacity, he can change his advance decision and accept or refuse future treatment.Advance decisions should be regularly reviewed to avoid the suggestion that the decision was withdrawn, or that circumstances now exist that were not anticipated at the time which would have affected the decision. It is a very good idea to discuss your decision with your doctor, family and close friends.
A written advance decision is a good record of your wishes but care has to be taken when drawing one up to ensure it will be found valid and applicable. Stone King can help draw up a document for you. Commercial forms are also available such as forms produced by Dignity in Dying ( formerly the Voluntary Euthanasia Society’ ) www.dignityindying.org.uk.
D. Lasting Powers of Attorney
A Lasting Power of Attorney is a document where you grant one or more people authority to make decisions on your behalf. There are two types of Lasting Power of Attorney. A Property and Affairs Lasting Power of Attorney which grants authority to make decisions regarding financial matters; and a Health and Welfare Lasting Power of Attorney which grants authority to make decisions regarding personal matters including decisions regarding medical treatment. In relation to decisions about your welfare, the person you appoint can only act if you are not capable of making that decision for yourself and they must make decisions in your ‘best interests’. A person appointed under a Lasting Power of Attorney can only make decisions regarding life sustaining treatment if they are specifically authorised to do so under the power.
In order to make a Lasting Power of Attorney you have to use a specified form. For more information please contact Alison Allen on 01225 337 599 or email: AlisonAllen@stoneking.co.uk
A later Advance Decision in relation to a particular treatment will override a Lasting Power of Attorney and visa versa.
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